My SCOTUS Crystal Ball is Telling Me
that the Supreme Court will agree to hear Hepting v. ATT, the NSA state secrets case that will be argued before the Ninth Circuit next week. My crystal ball isn't telling me whether the case will be argued in the end of the OT2007 or the beginning of OT2008, but it is predicting a reversal of the Ninth Circuit. Of course, it doesn't hurt that my crystal ball just learned that next week's Ninth Circuit panel consists of Judges Pregerson, Hawkins, and McKeown. (I should also point out that my crystal ball is the basic model that is notoriously bad at factoring in the possibility of en banc review.)
Thus, I make no prediction as to which cases the Supreme Court will take, but my crystal ball predicts that any case that the Supreme Court hears in this area, it will rule against the government, likely by a 5-4 margin (although Scalia may move over and make it 6-3 in cases involving US citizens).
As Yogi Berra said, ''It's tough to make predictions, especially about the future.''
Unless you're predicting that the 9th will be reversed again. Then it's easy.
Given that panel, it seems inevitable.
Whenever people give the Ninth Circuit a hard time, I'm reminded of Youngblood v. Arizona. There, most will remember, the Supreme Court (in a ruling joined by Justices Scalia and Kennedy) held that a state was not under a duty to preserve a semen sample from a crime scene. (The Supreme Court, in reaching this ruling, reversed what many would call an "activist" ruling by the Arizona Court of Appeals.) Because of that ruling, Larry Youngblood spent 9 years of his life in prison for a sex crime he did not commit:
http://www.innocenceproject.org/Content/303.php
What's worse, because of the Court's ruling, the person who actually committed the sex crime remained free to commit more crimes. Whether he committed more crimes is unknown. But he was certainly free to commit them.
Thankfully we have Justices Scalia and Kennedy protecting us from these activist courts who create rights out of whole cloth! I truly can't imagine how cruel the world would be if police were actually required to maintain potentially exculpatory evidence. As the Duke lacrosse case showed us, no one has any need for constitutional rights, since police and prosecutors can always be trusted to do the right thing.
As they say, God Bless SCOTUS.
Apologies if this comment is somewhat snarky. But there are more than a few of us who think that the real judicial activism is taking place in Washington D.C.
So the Supreme Court reverses the Ninth Circuit? So what. Again, the Supreme Court gets the last word not because it's right, but because it's supreme.
This is perhaps the worst possible argument against the correctness of an appellate decision I have ever seen.
You mean if the Court had ruled in favor of Youngblood, the semen sample would have magically been restored to useable condition?
To get back to the main post on the thread, for those who are interested, the Ninth Circuit has audio files of oral arguments here. The case numbers are 06-17132 and 06-17137 (the cases were consolidated for argument).
As the Ninth Circuit's site indicates, oral arguments are usually available within 24 hours after the argument.
Why should SCOTUS wait for another case — are you suggesting there is favoritism at SCOTUS in the cert pool of clerks based on the whos-who lawyers who are signed on to the potential pool of cases as to which case gets selected?
Maybe the spy on Americans problem doesn't really matter much about the gravity and scope of harm, rather the issue is what credits and kudos end up on some BIG LAW resumes? Is that what you are proposing?
It should be the issue that matters.